Criminal Justice (Amendment) Bill 2009: Second Stage.

Tuesday, 14 July 2009

Seanad Eireann Debate
Vol. 196 No. 15

Page of 13

Question proposed: “That the Bill be now read a Second Time.”

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern):I am glad to present this Bill to the House. There has been much debate and commentary, inside and outside these Houses, concerning the content of the Bill and the process of its enactment. Regrettably, much of it has been misleading and, for that reason, I wish to clarify again the background to and purpose of this Bill and to confirm my conviction that there should be no delay in its enactment.

In recent years there has been a significant increase in the activities of organised crime gangs, which has been accompanied by a ruthless determination to impede investigation and prosecution. As I told the Lower House, I have been informed by the Garda Commissioner that there is no doubt that investigations into the criminal activities of such gangs are hampered by the unwillingness of people to come forward. Such unwillingness is a result of a fear that has grown following recent murders, including the tragic case of Roy Collins. These killings emphasise the complete disregard of those gangs for the rule of law and a determination to intimidate entire communities. Beyond the absolute tragedy of this or any murder, it confirms in the minds of the public the threat posed by these gangs and creates the climate of fear that is so conducive to the maintenance of control by criminal gangs within their communities. This was described as a wall of silence by one High Court judge and neither the Government nor the Oireachtas should stand by and let the criminal justice system be so undermined.

The threat to witnesses already is clearly accepted. Instances of intimidation of witnesses have been evidenced by withdrawn statements, refusals to testify or failure to recall events. Legislation was changed a few years ago to take this into account and despite what people have stated both inside and outside the Lower House, that has worked very well. Does anyone really suppose that groups that would kill in retaliation for a witness giving evidence would for some reason draw the line at the intimidation of jurors? I have no doubt that jurors will continue to do their duty conscientiously in a wide range of cases. However, the Garda Commissioner has made it clear that the threat is now such that in dealing with gangland crime, the effective administration of justice would be best served by the use of the Special Criminal Court.

During the debates in the Dáil, a number of Members of that House who are familiar with the communities within which these gangs operate stated their belief that jury intimidation occurs. The Minister for Defence, Deputy O’Dea, set out the situation during the 2003 trial of Kieran Keane in Limerick and noted that, despite issuing more than 700 jury summonses, a panel of 12 could not be established. The Minister of State at the Department of Foreign Affairs, Deputy Peter Power, also confirmed that his city of Limerick has changed radically in the past ten years and spoke of how dozens of people come to his constituency office each year with fear in their eyes following a call to serve on a jury in Limerick. Deputy O’Donnell of Fine Gael also stated that intimidation was rife in that community. The Minister, Deputy O’Dea, and [1204]the Minister of State, Deputy Peter Power, also related the disturbing tale of being photographed and filmed by criminal gangs on the day they joined thousands of citizens on a march in that city following the brutal murder of Roy Collins. Deputy Finian McGrath spoke of the situation in Dublin and confirmed the concern of his constituents should they be asked to sit on a jury dealing with gangland crime. Other Deputies on both sides of the Dáil spoke strongly in favour of the Bill. This support was further reflected by the large majority which passed this Bill last Friday. However, I emphasise again that the Government introduced this Bill on foot of strong advice from the Garda Síochána to the effect there is a level of fear and intimidation in those areas in which the aforementioned criminal gangs operate.

It may be argued that the fear expounded by the Deputies and others is based on the perception of persons within the community rather than actual instances of jury intimidation. Unlike the recanting of witness statements, which are often a clear indication of intimidation, an unwillingness by jurors to come forward with complaints of intimidation makes proving such interference with the justice system extremely difficult. However, I remind Senators of the comments of Mr. Michael Murray, the State solicitor in Limerick, when speaking on “The Week In Politics” on 5 July, that in the recent past he had asked the Garda to investigate a case in which a juror was clearly frightened. Furthermore, in his view, the atmosphere had been poisoned to such a degree that people were reluctant to serve on juries. He went on to state that the verdict handed down in that particular trial differed from that which was expected and that he believed this was because of intimidation of that juror and a number of other jurors on that jury. Last Sunday’s edition of The Sunday Tribune reported former High Court judge Feargus Flood as stating he had presided over gangland trials in which he believed juries had returned the wrong verdict. The stark fact is that members of such gangs have displayed a callous disregard for human life and a brazen contempt for their communities. They have come to believe that they can take on the criminal justice system and act as a law unto themselves. It is beyond question that criminal gangs will try to take whatever action is open to them to thwart the criminal justice system.

The Government decision to provide for a limited number of specific offences pertaining to organised crime to be prosecuted in the Special Criminal Court was not taken lightly. It was based on the strong advice of the Garda Commissioner and took account of information provided by him and others involved in the criminal justice system, which detailed instances of threats and intimidation. Furthermore, I am introducing offences here today that are inextricably linked to organised crime. A person will not be before the court on a murder, firearms or drugs charge but on a charge of directing the activities of a criminal organisation or of participating or contributing to a criminal organisation. The impact of that fact alone on the likelihood of successfully intimidating a prospective juror cannot be ignored.

Alternatives to scheduling these offences were considered. However, options such as sequestering jurors, using jurors outside the community from which the defendant comes, shielding jurors from sight of the open court or providing round the clock protection for jurors are not viable and will not guarantee freedom from intimidation. The Government questioned the Garda in this regard and it mostly is because the Twenty-six Counties is a very small community. The tentacles of these criminal gangs extend beyond the geographic parts from which they originate into many other regions, as can be demonstrated by some high profile murders that have been carried out on contract by these criminals. These gangs have sophisticated networks capable of identifying those they perceive as thwarting their activities, and their ability to carry out surveillance is evidenced by the increase in recent years in tiger kidnappings. In the view of the Government and the Garda Commissioner, the Special Criminal Court and its [1205]non-jury format is the single most effective means of successfully prosecuting such gangs and one should not wait for a further escalation in intimidation.

The enactment of this legislation is crucial. Those who state it can be delayed until the autumn ignore the point that at present under Irish law there is no offence of directing organised crime. Until the Bill is enacted, the steps to investigate, charge and ultimately prosecute those who are directing others in the commission of organised crime offences cannot be taken. I have heard some comments in recent weeks that the passage of the legislation should be delayed until September. The reasoning is that, because the courts will not be sitting until then, these charges will not be prosecutable in those courts. However, criminal law is not retrospective and were the Government to wait until September, no one could be charged in the meantime with any of the proposed new offences.

Senator Terry Leyden:Hear, hear.

Deputy Dermot Ahern:Consequently, it is ludicrous to suggest delaying the Bill’s passage until September because the courts are not sitting at present. Were passage of the Bill to be delayed until September and were something to happen in the next week or so, we would not be able to charge people with directing or participating in a gangland crime. The retrospectivity of legislation is very important in respect of the criminal law.

Senator Maurice Cummins:The Minister should not oblige the House to pass the Bill today.

Deputy Dermot Ahern:We also need to amend the provisions in regard to the offence of participation to effect the successful investigation of and prosecution for this offence. We cannot afford to delay such matters as this legislation is needed now.

The Bill before the House also introduces amendments to detention and search powers that will, among other matters, address problems that have arisen during the hearing of applications to extend the time for questioning. The Bill is in five Parts with 26 sections and I will highlight some of the main provisions. Part 2 concerns organised crime. In the main, this Part amends the organised crime provisions contained in the Criminal Justice Act 2006. New measures are introduced and existing provisions are amended. I wish to highlight the following sections.

Section 3 amends the existing definitions of “criminal organisation” and “structured group”. The existence of a criminal organisation is a crucial element in proving the offences provided for under this Bill. This section introduces a simpler formulation of the required definitions. Section 5 introduces into Irish law an offence of directing a criminal organisation which criminalises the directing or controlling of activities of a criminal organisation including the supervision of such activities or the giving of orders. This is to try to target gang lords rather than those who pull the trigger. This provision will strengthen our ability to pursue those persons who direct and control the activities of their criminal gangs although not directly or personally involved in those activities. The seriousness of the offence is recognised by the equally serious penalty of up to life imprisonment. The introduction of this offence, in addition to providing a necessary tool to combat the threat of organised crime, is also a requirement of our obligations as a signatory to the UN Convention on Transnational Organised Crime.

The section provides significant detail on what “directs” means and sets out the evidence to which a court may have regard in determining whether the offence has been committed. This was the subject of much deliberation by the Supreme Court in a recent case involving members of the Real IRA. In drafting these provisions, it was considered appropriate for the purpose of consistency to replicate these provisions in section 6 of the Offences against the State (Amendment) Act 1998, which contains the offence of directing an unlawful organisation. The amendment to the 1998 Act is contained in section 25 of the Bill.

[1206]Section 6 amends the participation in organised crime offence under section 72 of the Criminal Justice Act 2006 which will, where proven, carry a penalty of up to 15 years. Additional evidential requirements have been introduced that will assist prosecution. Facilitating the commission of a serious offence by a criminal organisation will not require proof that an actual offence was committed or that the accused had knowledge of a particular offence.

Section 7 is an important provision. The offences already outlined cannot be proven unless the existence of a criminal organisation is first established. This is the reason for the inclusion of this section. In particular, it allows for the hearing of evidence of a member or former member of the Garda Síochána with appropriate experience and knowledge as to the existence of a criminal organisation. During the debates to date, this provision has given rise to confusion. The evidence of a garda under this section will not in any way go to establishing the guilt or otherwise of a defendant. However, it will assist in meeting the first hurdle of a successful prosecution, establishing that the criminal organisation exists. The absence of reference to Garda Síochána rank in this provision is deliberate and was decided after much consultation with the Garda Síochána. It is crucial, in my view and the view of the Garda Commissioner, that the officer with the best knowledge and experience of the existence of a criminal organisation in a particular area should be the officer providing the evidence to the court.

Another significant provision is contained in section 8, which extends the remit of the Special Criminal Court to organised crime offences. It is not a step taken lightly. The Garda Commissioner has expressed strong concerns regarding jury intimidation. Increasingly, prospective jurors are seeking reprieves from participation in trials involving criminal organisations. Persons familiar with the communities and those working in the court system have convinced me that the threat is real. We have, however, ensured that safeguards are included in the legislation. For instance, the declaration that the ordinary courts are inadequate for the pursuit of these types of offences is without prejudice to the power of the DPP to direct that a person not be sent forward for trial by the Special Criminal Court on a particular charge.

We have also included a clause whereby this section will cease to operate 12 months following the passing of the Act unless continued by a resolution passed by each House of the Oireachtas. Each House will have an opportunity at that time to examine the operation of this section.

Under existing law, the DPP already has the option to send a member of a criminal gang forward for trial to the Special Criminal Court. We are proposing that a limited number of organised crime offences should be tried before the Special Criminal Court unless the DPP is satisfied that, in a particular case, the ordinary courts are adequate. This approach ensures clarity and certainty in the law.

Section 9 provides for inferences to be drawn from a failure of a defendant, prior to being charged, to answer any question material to the investigation of the offence. This replicates similar provisions in the Criminal Justice Act 2007, including a number of safeguards such as the electronic recording of questioning and that a reasonable opportunity must be given to consult a lawyer. An inference drawn under this section cannot solely or mainly be relied on to convict.

Section 14 introduces post-release restriction on certain activities orders. These orders can be applied at sentencing and will take effect on the person’s release from prison. The order can apply restrictions on the person’s movements, actions or activities, impose conditions on the person’s participation in any activity and apply restrictions relating to the person’s associations. This section was amended in the Dáil on foot of a Fine Gael proposal requiring a scheme to be laid before both Houses of the Oireachtas setting out the categories of restrictions and conditions that may be imposed, to give the judge directions.

[1207]Section 16 increases the penalty for witness or jury intimidation from ten years to 15 years. Part 3 of the Bill contains three sections that amend section 7 of the Offences against the State Act 1939, sections 7 and 8 of the Criminal Law Act 1997 and section 41 of the Criminal Justice Act 1999. These amendments arise out of an obligation to legislate for particular provisions of the UN Convention on Transnational Organised Crime. Parties to that convention are required to establish jurisdiction over obstruction of justice offences in certain circumstances where the offence occurs outside the State. These circumstances are where the offence occurs on board an Irish ship or aircraft or was committed by an Irish citizen or by a person ordinarily resident in Ireland. Section 7 of the 1939 Act contains the offence of obstruction of Government, including the Judiciary, and is amended in section 18 of the Bill. The provisions of Irish law being amended in these sections contain offences relating to the obstruction of justice.

That leads to Part 4 of the Bill, which amends provisions on Garda powers of detention and re-arrest. My amendments are primarily concerned with the conduct of the court hearings when the Garda Síochána seeks to have the period of detention extended. My objectives are to limit the possibilities for the disclosure of sensitive information, to reduce the risk of diverting gardaí unnecessarily from pursuing the ongoing investigations and to ensure court time is not taken up unnecessarily in dealing with constitutional questions that fall outside the jurisdiction of the courts concerned.

The Garda Síochána has powers under a number of statutes to detain persons arrested in connection with serious offences. The permitted duration of detention varies. Similarly, certain powers are directed at particular offences. The most frequently used power is in section 4 of the Criminal Justice Act 1984. It applies to all offences having a penalty of five years or more and provides for detention up to a maximum of 24 hours. Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 and section 50 of the Criminal Justice Act 2007 apply to a more limited range of offences but only to ones that justify the possibility of detention for up to seven days. Section 30 of the Offences against the State Act 1939 permits detention up to 72 hours.

Detention is for fixed periods and at the initial stages it is authorised and, if necessary, extended by a senior garda. However, detention in excess of 48 hours is, as a rule, only permitted on the authorisation of a District Court and occasionally a Circuit Court. Experience in recent times has made it clear that hearings of applications to extend the detention period are being used to elicit as much information as possible from the Garda Síochána about the current state of the investigation and its direction. This can seriously undermine an investigation.

Part 4 responds to this new trend in a number of ways. It provides that the court may direct that the applications be heard in camera or that certain persons or the public may be excluded. If the court agrees that some particular information is very sensitive and that its disclosure would harm the investigation, it may in those exceptional circumstances hear the evidence from a garda without anybody else being present. Having heard the information, the court may then decide that the information can be given in open court. The Bill also clarifies that the publication of details relating to an extension of time application, other than that it has taken place and the decision, is prohibited.

In the interests of efficiency, the Bill also provides that the garda making the application for an extension of time, who must be of at least the rank of superintendent, can give oral evidence on matters not within his or her knowledge but within the knowledge of another member. This provision is subject to the court being able to require the attendance of that other garda to give oral evidence if it is required in the interests of justice.

The same risk of prejudice to ongoing investigations can also arise in the case of applications to court for a warrant to re-arrest a suspect for a particular offence or for a search warrant. [1208] These applications are not on notice to the suspect. Nevertheless, hearings in open court could result in the disclosure of sensitive information. The Bill addresses this risk by providing that re-arrest applications are to be made in camera. Section 26, which is in Part 5, makes a similar clarification in respect of search warrant applications.

It is worth recalling that the court has a limited function in these matters. It must be satisfied that the extension of time is necessary for the proper investigation of the offence and that the investigation is being conducted expeditiously and diligently. My amendments will cause the court and the parties to re-focus on those points rather than engage in some other expedition to query the lawfulness of the arrest and detention, which is not a matter for that court. The hearing is not intended to be a focus for issues relating to the lawfulness of arrest and detention. Under the Constitution, that is a matter for the High Court primarily, as confirmed by the Supreme Court as long ago as 1990. My amendments clarify that issues relating to the validity of the arrest and detention are not proper to a hearing of an application for an extension of a detention period. This clarification will ensure that the gardaí concerned with the arrest and detention of a suspect are not required to be at the courthouse ready to give evidence in case the lawfulness of the arrest and detention is raised by the defence. Instead, they can get on with the investigation.

The amendments will greatly improve the operation of the detention powers by eliminating in so far as is possible the risk of sensitive information being disclosed to the suspect or his or her associates and in terms of the best use of Garda personnel. This will put an end to the perception in some quarters that a trip to the courthouse is an opportunity to waste time.

I draw attention to other amendments in this Part which are specific to individual detention powers. The House will recall that the detention powers in sections 2 and 4 of the Criminal Justice (Drug Trafficking) Act 1996 were subject to renewal by way of resolutions passed in each House of the Oireachtas. The most recent resolution passed was for a two-year period and expires on 31 December 2010. It is clear that these powers are a necessary part of the armoury in the fight against drug crime. Therefore, I propose to end the requirement for renewal. I indicated my intention to make the provisions permanent when the provisions were last renewed. This is achieved by section 22.

Section 23 extends the scope of section 50 of the Criminal Justice Act 2007 to the organised crime offences under Part 7 of the Criminal Justice Act 2006 as amended by the Bill. As I outlined, section 50 permits detention up to a maximum of seven days for very serious offences involving the use of a firearm or explosives. The Garda, in its advice to me, made it clear that such increased detention powers are necessary given the nature of the Part 7 offences and the difficulties arising from the lengths to which the people involved will go to thwart the Garda investigation of these offences.

In addition, the nature of these offences is such that the process of gathering the information that gardaí need to put to suspects in custody can be slow. Often, it must be done against a background of intimidation and internecine feuding. I emphasise that there is no question of all persons suspected of such offences being held for seven days. Experience of the operation of section 50 to date and the Drug Trafficking Act over the past 13 years is that the longer periods of detention are used very sparingly. I acknowledge that this is a significant package. However, I remind Senators that there is nothing in the Bill which does not already exist in Irish law.

We are facing an extraordinary threat requiring a determined response. I repeat that the step is not being taken lightly but it is one that we are convinced must be taken. This must be put in the context of what happened in recent months. After the awful murder of Shane [1209]Geoghegan I and the Government were put under considerable pressure inside and outside the Oireachtas to introduce legislation. At that time we stated that we had enough legislation or more than was required and that the Garda had all the resources. I do not want to have a hierarchy of murders but the murder of Roy Collins was a watershed and a tipping point, as Deputy Rabbitte described the murder of Shane Geoghegan. People were willing to wait four years to take it out on a family — not on a person who gave evidence as I saw in one article in The Irish Times. A leading human rights lawyer wrote that Roy Collins was killed because he was a witness in a trial. He was not a witness in a trial; he was the son of a man who was a witness in a trial.

That was the tipping point whereby we had to re-examine the legislation on our statute books and one of the aspects we considered was amending the provisions on participation, which were in existing legislation but had not been used because the proofs required were convoluted. This Bill amends that to make it easier and simpler to ground a prosecution for participation. For the first time, we are including an offence of directing a criminal organisation, something not in our legislation heretofore, and there was a lacuna in that respect. It was necessary to introduce it to follow those people because the Garda have been extremely successful in getting the people who pulled the trigger but not so successful at getting the gang lords and orchestrators of these awful murders.

2 o’clock

The Government strongly believes that the Bill is required, based on the advice given by the Garda Commissioner and on the statements of State solicitor Michael Murray over the past five years about a level of fear and intimidation in communities making people not co-operate as witnesses and not come forward for jury service, not just in Limerick but throughout the country and in areas in Dublin such as Finglas. One must consider the figures that clearly show when a gangland trial occurs in Limerick the numbers drop dramatically and they go back up when the trial is over. People suggest we should move the trials to Dublin but I assure Senators that the strong advice of the Garda is that in a country the size of ours this is not feasible and the Garda has empirically hard evidence that these people have tentacles throughout the country with colleagues and associates who can take out people and intimidate people.

The Bill is necessary; it is not taken lightly but I would not want anyone to overstate it. Let us be frank, up to last weekend people have stated that the Bill contains provisions for opinion evidence whereby a garda of any rank can state that Mr. Joe Bloggs is a member of a criminal gang.

Senator Mary M. White:Hear, hear.

Deputy Dermot Ahern:That is not in the Bill and I wish people would stop stating it.

Senator Mary M. White:Expert.

Deputy Dermot Ahern:It is true that we were asked to include it in the Bill but we did not do so because it is completely different to try to prove that someone is a member of a terrorist or paramilitary organisation than to prove that someone is a member of a criminal gang; it is far more difficult to prove that somebody is a member of a criminal gang. That is why as an alternative to opinion evidence the Attorney General advised that to set the scene and prove the existence of a criminal gang it was necessary for a garda to give evidence that a criminal gang existed in a particular geographic area, but that garda would not indicate a view or opinion as to the guilt or otherwise of the accused. The garda would not state that an accused was a member of that gang; that would require other proofs.

[1210]Fine Gael tabled an amendment in the Dáil and tabled one here to state that the garda giving this evidence should be a chief superintendent. A chief superintendent could sit in an office and would not have any direct knowledge of the existence of a gang. Any lawyer worth his or her salt would be able to drive a coach and four through that evidence on cross-examination because of the lack of personal knowledge. The Garda was strongly of the view that we should leave the rank as any rank. I have been given an assurance that normally it will be a detective inspector who will give evidence on the existence of a gang. People should not confuse this and criticise the Bill for what is not in it. There has been a large element of that and whether it is that people have not read the Bill, put pen to paper, gone on the public airways without reading it or are endeavouring to throw some confusion into the system, I strongly urge people to hone in on what we are trying to do here. I believe we all have the same goal, that is, to rid this country of the significant threat from criminal gangs. The killing of Roy Collins was the tipping point in that it is clear there are people who are prepared to intimidate and the more we can do to obviate the necessity for civilian involvement in gangland crime trials before the criminal justice system, the better.

Ultimately, it is the Director of Public Prosecutions who makes these decisions but the Oireachtas is sending out a strong signal that only these particular offences should be triable in the Special Criminal Court where there are no juries unless the DPP orders otherwise. That is the correct way because it is sending a strong message to Irish society and to the criminal gangs who know they will not be able to intimidate jurors. That, combined with the surveillance legislation the President signed today, will obviate the necessity for civilian witnesses in gangland crime trials. I am not saying we will not require witnesses in the Special Criminal Court. We will but as much as we can, while maintaining the right to a fair trial and adhering to people’s human rights, it is important that we reduce as much as possible the civilian element of gangland crime trials because that has been acknowledged by the Supreme Court, the High Court and the Hederman committee, which examined the issue of the continuation of the Special Criminal Court. It is not just for paramilitary crime. It is also for organised crime because it is to the advantage of those people that they thwart the trials that are taking place to ensure they continue operating as they have done.

I would welcome the comments of Senators. We have accepted amendments in the Dáil. We accepted a Fine Gael amendment as part of the submission from the Irish Human Rights Commission. We accepted a substantial amendment, which is now part of the Bill before us, on the issue of inferences. We accepted what they were saying regarding the wide nature of the original proposal. The Bill has been amended fairly substantially by Government amendments, by the Fine Gael amendment and by the Irish Human Rights Commission’s suggested amendments also. I commend the Bill to the House.

Senator Terry Leyden:Well done.

Senator Eugene Regan:I thank the Minister for outlining the purpose of the Bill. He has not explained, however, why it was necessary to guillotine the discussion on this Bill in the Lower House and the reason it is necessary that we deal with all Stages of this Bill today. I assume that is taking place at his prompting.

I raise that issue because we all share the same concerns about gangland and organised crime, which I will come to, but the divisions created on this Bill in the Oireachtas would not have been necessary if the Minister had allowed adequate time for debate and consideration of amendments both in committee and on the different Stages. The Minister makes my case in that regard because he has just referred to accepting an amendment from Fine Gael but I [1211]understand only six amendments were debated in the Dáil. If there had been further debate on the other amendments and the matters teased out, the Minister might have found it wise to accept other amendments. Guillotining the legislation and rushing it through this House, and not having the Dáil in session to receive the Bill if amendments are made in this House, means that the whole process is guillotined. That is the root of the division on this issue.

On the Bill itself, Fine Gael agrees with the principle of the Bill. We agree with making it an offence to direct, participate in or actively support criminal gangs and we believe it is appropriate to make all of those matters offences. There is no division regarding the principle of the Bill.

The background to this is that we have moved from a position of zero tolerance, which was the electoral platform of Fianna Fáil in 1997. Twelve years later, far from that being realised, we are in a position where gangland crime has flourished under the watch of this Minister and previous Ministers of the Fianna Fáil-led Administrations in the past 12 years. Since 2005 there have been 102 gun murders, as a result of which there were only four convictions. There have been 15 gangland murders to date in 2009. There were 20 in 2008. That is what has occurred under the watch of the Minister. It is an admission of failure, in setting out the justification for this Bill, that the system of administration and justice is ineffective to deal with these issues but that is the position we are faced with and that is the reason we support the main elements of this Bill.

Everyone has had a view on the Bill including the criminal Bar, the Irish Human Rights Commission, the Irish Council for Civil Liberties and former judges but it is for the Oireachtas, after careful scrutiny of this legislation, to make a judgment on whether the legislation is necessary and proportionate and, in that regard, whether there are adequate safeguards to ensure it is upheld by the courts and found, when challenged, to be constitutional. That is the only concern we in Fine Gael have with regard to this legislation. We wish to play our role in scrutinising it, ensuring it is immune from legal challenge and that it does the job it is intended to do.

There has been much talk about intimidation of witnesses and jurors. I have no difficulty with the concerns expressed about the intimidation of jurors, whether it is occurring wholesale or in specific instances, in terms of gangland crime. It is clear, however, that we cannot know that because what juror whose life or family is threatened if he or she acts in a particular way will ever reveal that is happening because then the threat will be realised? Given the insidious and pernicious nature of gangland crime and the extent of intimidation, I see justification for having recourse to the Special Criminal Courts. In debates in this House I have indicated that I believe the Special Criminal Courts have a role in that area.

That is not just a political judgment. The Special Criminal Courts, which originally were designed to deal with subversive activities and the threat to the State, have been found, as the Minister said, to be appropriate in dealing with other forms of crime and offences. The Oireachtas Library & Research Service has outlined the number of cases in which this issue has been addressed by the courts. In the case of The People (DPP) v. Quilligan, Mr. Justice Walsh in the Supreme Court stated that it does not follow that the power of the Government to issue a proclamation to the effect that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of peace and order must necessarily apply only with reference to the type of offences created by Parts 2 and 3 of the Offences Against the State Act. He went on to state that there could well be a grave situation in dealing with ordinary gangsterism or well financed and well organised large scale drug dealing or other situations where it might be believed or established that juries were, for some corrupt reason [1212]or by virtue of threats or illegal interference, being prevented from doing justice. That goes back to 1986 and it is, perhaps, where we are today.

There was also a legal challenge in the case of Kavanagh v. Ireland [1996]. The applicant argued that, even though the appropriate certificate had been granted by the DPP that his was a case in which ordinary courts were inadequate, the continuance of the Special Criminal Court for avowedly non-subversive offences was manifestly unconstitutional. Judge Barrington found that “the issue involved is not the nature of the offences but the adequacy, in the opinion of the Government or the Director of Public Prosecutions, of the ordinary courts to secure the effective administration of justice in relation to them”. Hogan and Whyte in J. M. Kelly: The Irish Constitution (Dublin 2004) , conclude that the practical effect of this decision is “to render it all but impossible to mount a legal challenge to a decision of the Government to establish or maintain in force the Special Criminal Court”. The Bill deems these offences as appropriate to be dealt with by the Special Criminal Court. In the case of gangland crime it is appropriate to establish the legal basis for this.

The real question is what safeguards are being put in place. A number of amendments have been tabled by Fine Gael. We see the uncorroborated opinion of a garda, the departure from the principle of jury trial and secret hearings for the extension of detention as problems. There should, at least, be some record of those proceedings. In these types of issues, the introduction of safeguards makes interference with the constitutional right to liberty proportionate. That is why Fine Gael believes that proper debate on these amendments and proper scrutiny of the Bill can improve the legislation and ensure that it is fit for purpose.

The Minister presents the Bill as a panacea for every ill. This Bill, the Criminal Justice (Surveillance) Bill and other recent criminal law legislation leave the Minister with no excuse not to ensure more effective detection and prosecution of crime. The record, to date, is dismal. The Minister says this Bill is very important and that he has information from the Garda Commissioner and from all his intelligence resources and advisers that it is important. A legislative response to recent atrocities and brutal killings of innocent people is required. When this Bill is enacted there can be no excuses.

It is not legislation which is getting in the way of effective law enforcement and it is not always the lack of legislation which creates the barrier to effective law enforcement. There is an inconsistency between this legislation and the Minister’s decisions regarding the allocation of resources. We are freezing Garda numbers and cutting Garda overtime. Key equipment is required by the Garda. Digital radio is only now being provided. A DNA database, which is required by EU legislation, is long promised but has not been delivered. In 2009, there was a very modest, inadequate and ineffective increase in the budgetary allocation to Operation Anvil. With regard to the importation of illegal drugs, one boat monitors more than 3,300 km of coastline, there is one mobile scanner for all ports and a virtual free-for-all at smaller and private airports. The failure of the Government adequately to resource the Garda Síochána and the Customs and Excise service and to provide them with the most modern equipment is a serious impediment to effective law enforcement.

The south-west coast has become a favourite arrival point for major drugs importation. In 1996, €125 million worth of cocaine was found on a boat in Cork Harbour, in 1998, €61 million worth was seized in Kinsale and in 2007, €444 million worth was seized in Dunlough Bay in west Cork. More recently, the largest seizure in the history of the State was made 200 miles off the south-west coast when a joint EU task force traced a yacht carrying €500 million worth of cocaine. The resourcing of the Garda and the Customs and Excise service is vital.

[1213]The Director of Public Prosecutions has stated that the reduction in the budget for his office will mean it will not be able effectively to carry out its task in the prosecution of crime. I do not understand why the Minister is silent on this issue. Fine Gael emphasises the importance of this legislation and supports it, subject to adequate scrutiny and the inclusion of adequate safeguards to ensure it works effectively.

The Minister has not addressed the prioritisation of resources for the forces of law and order. There must be a balance between introducing and enforcing legislation. We recently passed the Criminal Justice (Surveillance) Bill. If that legislation is to be effective, we need the most modern surveillance equipment and training resources for those who will operate it.

Fine Gael will submit amendments on Committee Stage to improve the Bill and make it more effective and fit for purpose. Our major objection is to the manner in which the Minister conducts his business in the Dáil and in this House. To rush legislation which is important for law enforcement and fundamental rights is unacceptable.

Senator Denis O’Donovan:I welcome the Minister to the House and I welcome the Bill. I compliment him on the manner in which the Bill was presented to the House. His presentation was inspiring and his hands-on approach to the issue gives us confidence that he is well briefed on the issue.

The Bill is not being introduced on the Minister’s whim. It follows advice from top level gardaí, particularly the Garda Commissioner. This fact must not be ignored.

I was interested in the comments of the State solicitor for Limerick city, Mr. Michael Murray, on a recent radio programme. I empathise with his comments. They solidify and add another dimension of support for the Bill.

One cannot ignore the remarks of people like Mr. Justice Flood. Among his other comments, he stated that major trials had fallen the wrong way. One would also be foolish to ignore the remarks of Deputies from Limerick, including Fine Gael’s Deputy O’Donnell, the Minister of State, Deputy Peter Power, and the Minister for Defence, Deputy O’Dea, an outspoken individual by nature who lives in the hub of gangland activity. Unfortunately, Limerick seems to be the capital of major criminal gangs and the Minister has second-hand knowledge from the people on the ground. These issues cannot be ignored.

A few years ago, Canada had a considerable problem with biker gangs. For two decades, ruthless gangs intimidated and infiltrated Canada’s major cities and drastic legislation needed to be introduced to control them. With the aid of good policing and a strengthening of the laws available to the police and judiciary, some of the largest and most ruthless gangs ever to stalk Canada were brought to heel and broken up.

Let us be realistic. In Limerick and parts of Dublin — I noted heroin’s recent impact in Cork city, which is closer to home for me — the situation is out of control, more or less. I listened carefully to Senator Regan’s comments on providing better technology to the Garda, providing more funding to Operation Anvil etc. To a large extent, I do not have a problem in this regard. However, there is not much point in giving the Garda the best equipment and radios if we fail at the last fence. A Beecher’s Brook seems to be emerging in legal parlance, that is, we can only get so far. The gardaí on the ground know what is occurring and which culprits are directing the crimes, but they do not have a legal framework. The Bill provides the necessary mainstay of a legal framework in addition to the surveillance Bill and other criminal justice Bills. The Minister is correct to ensure that the legislation moves through the House swiftly.

The direction of organised crime is an appalling action. Some of it has been done from prison cells, the Costa del Sol, Bulgaria or apartments in Amsterdam. As we must strengthen our laws in response, the Bill is not before time. When reading stories in the media, one would be [1214]inclined to take one side or the other unless one was balanced. Since the Bill came into the limelight two or three weeks ago, I have read a number of journalists’ substantial reports. I was taken aback when three eminent crime journalists stated that they were afraid due to the intimidation and threats by certain individuals and gangs. This situation cannot be ignored. Do we wait for another Veronica Guerin-style murder? Do we wait for a member of the Judiciary or a politician who stands up against gangs to be intimidated or attacked? I think not. We should move swiftly and introduce the legislation into the Statute Book.

It is important to note the role of the Director of Public Prosecutions, DPP, and his discretion. A number of innocent people have been affected in recent years. The Minister made an impassioned comment that the murder of Roy Collins was the step too far, that someone had dared to take out a person who, rather that being directly involved, was a relation of a witness who had been brave enough to give evidence. Other victims include Shane Geoghegan, Brian Fitzgerald, Anthony Campbell, Donna Cleary, Baiba Saulite, Edward Ward and Wayne Doherty. The Bill will try to deal with this type of crime. In fairness to the Minister and with all respect to my learned colleague, Senator Regan, the Minister never stated that the Bill would be a panacea, a utopian answer to everything, unless it was stated on the QT. He realises that, put together with other criminal legislation like a jigsaw puzzle, it will buttress our defences and strengthen the arms of the Garda.

I was taken aback when I read the letter sent to The Irish Times by a group of defence lawyers. They were outspoken in their condemnation of the Bill. While I do not question the integrity of the Irish Council for Civil Liberties, ICCL, I sometimes wonder where it is coming from. I am baffled that, when the people I named were murdered, those eminent lawyers and the ICCL did not express their outrage in a letter. We need a balance and it is important that we get it right.

The Bill contains tough measures, but they are necessary. It is not an easy step for the Government to include organised crime in the Schedule of offences in the Offences Against the State Act so that people can be tried in the Special Criminal Court unless the DPP directs otherwise. It is important to note the creation of a new offence of directing a criminal organisation that will carry a maximum sentence of life imprisonment. As the Minister rightly pointed out, the mules who take drugs from A to B and who are often drug users who cannot stand up to bullies are those who are given five, seven or ten years in jail. The people behind the scenes are professional and sophisticated. Most do not even use drugs or alcohol. They are the ones who direct the organisations and the trafficking. They seem to be above and beyond the law. This legislation will see some of them quaking in their shoes. If so, I will be happy.

The Bill will create an amended offence with a penalty of up to 15 years, namely, the participation or involvement in organised crime. It is important to note that expert Garda opinion evidence on the existence and operations of criminal gangs will be admissible in evidence. I had a small doubt about this, but the Minister clarified the situation. Previously, such difficult legislation demanded, for example, a chief superintendent. Senator Regan referred to my area, which has an expansive coastline where major drug hauls came ashore recently. A chief superintendent might live 60 or 70 miles from where the activity is, but a local detective, detective sergeant or, as the Minister stated, a detective inspector would have a more intimate knowledge of the offences occurring on the ground. It is a serious matter.

It is important to note the reason for the Bill’s urgency. On my way to the Oireachtas today, I was glad to note that the surveillance Bill had been signed into law by the President. It is an important bow in the armoury of criminal justice legislation.

[1215]I believe I am correct in stating this legislation is to be reviewed annually. If, in three years, circumstances change and the criminal gangs have been dispersed, it will be possible for the Oireachtas to amend it and revert to more normal legislation for dealing with criminal offences. One might assume every action encompassed by this Bill will end up in the Special Criminal Court without any jury but there are safeguards in this respect. It is important to note these checks and balances, whose aim is to protect human rights and avoid miscarriages of justice. In particular, section 3 provides that the legislation will apply only to criminal organisations that exist for the purpose of committing or facilitating serious offences. This will not affect the daily lives of ordinary citizens.

Section 7 provides that Garda expert opinion evidence is only admissible in evidence in regard to the proof of the existence of a criminal organisation, not to the proof of the particular crime being investigated. It is important to note this. The constitutional rights of the defendant are, therefore, protected. Anybody in custody will always have the right to seek a writ of habeas corpus or to apply to the High Court to protect his constitutional rights. The Bill does not have an impact on his constitutional rights.

The safeguards in section 8 include a provision stipulating the legislation will lapse after one year unless the Oireachtas passes a resolution that it should continue in operation. This must happen annually. Section 8 also provides that the Director of Public Prosecutions has absolute discretion to determine whether an accused person should be tried in the Special Criminal Court or the ordinary courts. That is a very important balance and I welcome it.

Section 9 provides that inferences can only be drawn from the failure of an accused to answer questions in certain defined circumstances. The first is where the defendant is told in ordinary language the effect of such a failure when being questioned. Second, the defendant must be afforded a reasonable opportunity to consult a solicitor and, third, the interview in question must be recorded electronically. Checks and balances protect the rights of the accused before any inferences can be drawn.

There is no doubt that this legislation is tough but it is necessary. If it saves even one life over the next 12 months or during the Oireachtas recess, it will have proved its worth. If one gangland criminal, be he from Limerick, Cork or Dublin, is put behind bars on foot of the enactment of this legislation, it will be worth its weight in gold. The legislation is strong and tough but necessary. As Deputies, Ministers of State and Ministers stated in the Dáil, things are out of hand. The public, whose confidence must be restored, requires the coat of armour the Minister is providing with this legislation. I welcome the Bill and commend it to the House.

Senator Ivana Bacik:I wish to share time with Senator Quinn.

I welcome the Minister. I declare an interest in that I am a barrister who practises in the area of criminal law and who has done some work in the Special Criminal Court.

To respond to the Minister’s speech, I have read the Bill in full. The Minister stated some individuals who had commented on it had not. Having read the Bill, I welcome the opportunity to debate it in the House but am very sorry we are having such a truncated debate. It is most unfortunate that the Government is seeking to take all Stages of the Bill in one day. This renders the debate a sham given that we know the Dáil is not sitting and that a Minister will not be accepting amendments. The ordering of business in this House needs to be carried out in a more measured and realistic manner that permits proper, reasoned debate on important legislation such as this.

To respond to Senator O’Donovan, every speaker on this side of the House and the other would like to express outrage at the horrific killings that have taken place in the name of organised crime and which we all recognise have prompted the introduction of this Bill. Senator [1216]O’Donovan has listed some of those killed whose killings have caused considerable public revulsion, including Shane Goeghegan, Wayne Doherty and Roy Collins. I agree with the Minister that the killing of Roy Collins represented a watershed in that it appeared to have been a direct attempt to undermine the criminal justice system.

While we all share the goal of ridding society of the threat of criminal gangs and share in the general revulsion of the killings, the main reason I oppose the Bill is because it will not help in any way the families of the victims of gangland killings. It will not be effective in fighting organised crime. Many people have expressed opposition to the Bill on that basis, including some gardaí, who have expressed strong concern that it may be rendered ineffective, even if it is not referred by the President to the Supreme Court under Article 26. They fear it will very quickly become bogged down in constitutional challenges given the many changes it makes to some of the fundamental principles of our criminal justice system.

There has been some exaggeration on the part of those who support the Bill in total. The Minister, for example, began his speech by referring to the threat to witnesses and potential witnesses of crime, which is clearly accepted. It is important, however, to point out the Bill does nothing to protect witnesses or potential witnesses. The legislative steps already taken have been aimed much more directly at ensuring witnesses are afforded some protection or that other ways of giving evidence can be provided for. I certainly welcome the recently passed Criminal Justice (Surveillance) Bill, which, as the Minister stated, will result in a means of providing evidence without having to rely on witnesses. We welcome the continued operation of the provision introduced some years ago allowing witness statements to be given, even where the witness later retracts. Those measures were introduced to offer some protection against witness intimidation.

The other side of the House has engaged in some lazy or cheap name calling, aimed at those who have expressed serious opposition to or concerns about the Bill. It is not conducive to proper debate to call those us who have expressed doubt about the Bill woolly liberals or to state we are soft on crime. That language has masked real concern by the Members on the Government side that they have gone too far with this Bill in an attempt, by the Minister it seems, to appear tough on crime.

We do not oppose this Bill for the sake of it. Many of us welcomed other criminal justice measures that were introduced. I welcomed the Criminal Justice (Surveillance) Bill, which gives surveillance a statutory framework. We were all anxious that that Bill be watertight and, in so far as possible, immune from challenge.

I do not by any means oppose all the provisions in the Criminal Justice (Amendment) Bill 2009. As with other Members, I recognise the need for certain measures, including tightening up the definitions in sections 3, among them the definition of “criminal organisation”; the making of provision for extra-territorial effect in Part 3; and the increasing of the penalties for the intimidation of witnesses and jurors in section 16.

While many elements of the Bill are welcome, it is worth noting, however, that many of its provisions amount to amendments of Part 7 of the Criminal Justice Act 2006, which itself was introduced to combat organised crime. Many of the provisions in the latter have proven to be problematic, thereby resulting in the amendments.

Serious objections must be raised regarding three aspects of the Bill in particular, which aspects were referred to by the 133 practising criminal barristers and solicitors who wrote a letter to The Irish Times last week. They were correct to ask for the withdrawal of the Bill and for more detailed and comprehensive debate thereon at a later date. I share their view. The provision in section 7 of the Bill that the existence of a criminal organisation can be proved by [1217]the opinion evidence of a garda or former garda of any rank is fundamentally flawed. I have read the Minister’s defence of it in today’s edition of The Irish Times. That is based on a misunderstanding or misrepresentation of first principles of evidence because expert evidence is opinion evidence. It amounts to an exception to the general rule against the admission of opinion evidence but it does rely on a common understanding of what is meant by an expert. We all accept that a forensic pathologist can interpret facts differently from a lay person. I cannot look at a dead body and give the sort of evidence that Dr. Cassidy gives so well in so many cases because I do not have that expert knowledge. By declaring somebody in legislation to be an expert does not make that person an expert in the sense of the exception to opinion evidence. That is my fundamental concern about a garda or former garda giving evidence in this way.

Deputy Dermot Ahern:It does not. The court has to establish whether the person has the expertise or the information.

Senator Ivana Bacik:It is very difficult to see how a court will establish that in any proper way without going into the nature of the evidence.

The gardaí have expressed some concerns that following cutbacks in the force and early retirements, the insertion of the “former” member may be recognition that many experienced gardaí will have retired by the time the Bill comes into effect.

I accept that the Minister is not inserting in legislation the provision that a garda can give opinion evidence that a person is a member of an organisation. That would definitely have been a step too far. There must, however, be a real concern about gardaí giving evidence on matters such as this.

My second principal objection is to the sweeping declaration in section 8 that “the ordinary courts are inadequate to secure the effective administration of justice”. This undermines our criminal justice system. The Irish Human Rights Commission, IHRC, to which the Minister referred, stated in page 6 of its observations: “The IHRC considers that the developed system of criminal justice which exists in Ireland is capable of effectively confronting the problem of organised crime without resorting to a parallel criminal justice system that does not provide the accused with the right to trial by jury.”

Section 8 contains the unprecedented adoption of a “parallel criminal justice system” outside the realm of so-called subversive offences in which the Special Criminal Court already operates. It is unnecessary because the Director of Public Prosecutions, DPP, has the power to refer non-scheduled offences to the Special Criminal Court and used that power following that other watershed murder, that of Veronica Guerin, and the cases arising. In Britain the prosecution can apply for a non-jury trial if there is evidence of the potential for jury tampering. That is a preferable approach to this blanket or sweeping provision. In sections 35 and 36 of the Offences against the State Act there is a different mechanism for declaring that the ordinary courts are “inadequate to secure the effective administration of justice” and that must be done by the Government. Why is the Oireachtas doing this in this sweeping way in section 8?

I am gravely concerned about the provisions of sections 21 to 23, inclusive, for secret hearings, that can take place on the extension of a person’s detention in the absence of anyone other than the garda seeking the extension and the judge, and possibly a court clerk. The Minister has defended these provisions on the basis of what is now a rather tired anecdote about an unnamed lawyer in Limerick. A corrupt lawyer is a very serious matter and that lawyer must be tried and if found guilty punished accordingly. I do not believe, however, that we should throw the baby out with the bath water, or change the entire basis of the hearing system for extending detention just because there may be one example of corruption. An [1218]alternative is possible, to exclude from the courtroom all except those directly concerned with the case or all except the lawyers for the prosecution and the defence.

I have tabled amendments on the lawfulness of arrest and detention. The Minister said that there is nothing in this Bill that is not already in Irish law, but I beg to differ. The three points I have raised are unprecedented in scope and in the way they encroach on the fundamental right to a fair trial. That is why I oppose the Bill.

Senator Feargal Quinn:I appreciate Senator Bacik’s giving me time to speak. I feel reticent because most of those who spoke on the Bill are lawyers and I am not. However, I opened a supermarket in Finglas many years ago and one in Limerick a few years ago, and I have been threatened with kidnap while several of our managers have been subjected to “tiger” kidnapping. While I support what the Minister is attempting to do, I wonder do we have to go this far. Are these the correct steps? I agree with the Minister that the murder of Roy Collins was a tipping point, but there have been many other tipping points. We have not had to face this horrific gang activity before. Senator O’Donovan said these are tough but necessary measures. They are tough but are they necessary?

I thought the problem with the juries had been solved because the DPP can certify that a case should go to the Central Criminal Court. If that is so why does the Minister need this extra legislation? I thought the Criminal Justice Act 2006 had solved the problem of witnesses who changed their minds after the gardaí had videotaped their evidence. That was a serious matter of witness intimidation.

The Minister said that 700 jurors might be called but only a handful would turn up.

Deputy Dermot Ahern:They could not get 12.

Senator Feargal Quinn:This does not seem to solve that problem, apart from doing away with jurors. That is horrific. We must be able to solve that problem. I did not realise that was happening. I have served only once on a jury. I do not think this provision solves that problem.

The Garda Representative Association, GRA, is concerned about the Bill because it could be open to a legal challenge. It is mainly worried about the Minister’s amendment that would allow any serving or former garda to give opinion evidence in court relating to the existence of a criminal gang. This could be interpreted as an individual opinion, rather than an expert opinion as the Minister claims, and could lead to defendants challenging the legislation. The secretary general of the Garda association, P. J. Stone, said that the GRA was concerned that the onus and responsibility for garda testimony will be placed on all ranks. The rank and file gardaí are often the investigators who produce the files of evidence and it is sufficient for senior ranks to present these to the jury. Will the Minister put my mind at rest about that? I listened carefully to what he said today and support his intention to solve this problem but let us not repeat what the British did when they did away with their courts, and the Birmingham Six and others got an unfair deal. Is there any danger that something like that could happen here too?

Senator Dan Boyle:Rights in a free society are hard won. They are protected by custom, precedent, common law, the Constitution, implicitly and directly, and legislation. A free society should strive to protect all such rights at all times. Very often rights are compromised by citizens who fail to act responsibly to respect the rights of others in society. Unfortunately, a group of no more than a few hundred people are choosing to behave irresponsibly. They do so in ways that are often loathsome and vile and they have threatened the security and often the lives of many of our citizens. Regrettably, this has resulted in legislation of this type being [1219]proposed and debated. It must be acknowledged that consideration of measures that compromise the rights of citizens as they have been practised diminishes us as a society.

It is important that political debate is held in a proper context. All the concerns that have been raised in this debate so far today and in the debate in the other House are legitimate views. They should be aired and responded to. We should be concerned about the fact that the measures proposed in this Bill will have an impact. We need to strive to ensure that impact will be minimal and short-term. The main measure in ensuring such protection exists is the review process. This legislation will be reviewed on an annual basis. There is an onus on the Minister in this respect. When responding to this debate, I hope he will outline how such a robust review process can take place.

The template for legislation of this type is the legislation on the prevention of terrorism, which was also renewed on an annual basis on foot of a report that was laid in the Oireachtas Library and on which debates were subsequently held. This current legislation deals with the rights of citizens and gangland crime as opposed to terrorism. The review process of this legislation must be over and above that which applied to the other legislation in the past. The onus should be on the Minister and the Department to prepare a review of the effect of this legislation in the first year following its enactment in terms of whether it is effective and whether any of the rights discussed in the debates in both of these Houses have been compromised in any way. The review should also involve the input of the Oireachtas Committee on Justice, Equality and Women’s Rights before a report is finalised and debated in this Chamber and the other House. If such a process does not take place, the fear has been expressed that the rubber-stamping exercise that took place year after year in terms of the Prevention of Terrorism Act will also happen in respect of this Bill. We must acknowledge that these are measures that it is hoped will be temporary in nature. We, as legislators, and the citizens of this country, need to see that they will be effective. We must make sure that they will not be used in any way to compromise the rights of our citizens in general.

Concern has been expressed about the role of members of the Garda Síochána in terms of powers they will be given under this legislation to identify the existence of a gang as opposed to individual gang members, which has been misrepresented in some contributions to date. Concern has also been expressed about the power that will be given to judges in non-jury trials. In passing legislation of this type we are placing great faith in trusting in people we believe are serving the interests of the State, our police force and our Judiciary. It is hoped that in giving them that power, they will use it wisely. It has tended to be used wisely in the past, but these powers should be used sparingly and we should strive to ensure that in time they may not be needed.

The existence of non-jury trials has been the subject of much of the debate on this legislation. As the Minister pointed out, the difficulty in acquiring juries in particular cases has been used as a mitigating circumstance for what has been proposed in this respect. It could well be that in general people are fearful of intimidation in terms of serving on a jury. I have a concern that this legislation does not address that fear. The wider problem of whether citizens are willing and able to serve on juries is one we as legislators need to address. Many of the concerns expressed about those provisions can be taken on board.

We all share a common view of the nature of the problem that exists, its seriousness and the fact that it needs to be dealt with. This is not the type of legislation that can be dealt with in a “politics as usual” way. This is not legislation in respect of which one can claim to be indulging in macho posturing to be harder than the people we are seeking to punish for threatening the lives of our citizens because that would diminish us as a society. Neither is it the type of [1220]legislation in respect of which we should be engaging in knee-jerk liberalism that the right rather than the person is what we should be protecting in our society.

I reiterate that we are debating this legislation more with a sense of sadness than of euphoric delight that the right thing is being done. As to whether it is the right step, we will find that out at the time of the first review process in 12 months time. From my party’s point of view, if that review process is not robust and if it reveals that the legislation is ineffective and that rights are being compromised in an unnecessary way, then this legislation will need to be replaced. We must be open and honest in saying that.

I look forward to the Minister responding to the ongoing concerns about this legislation. In the sense of this legislation being necessary to deal with a serious situation, I appeal to him to also recognise that all who have participated in this debate have done so on the basis that they too wish to see a safe and secure society and their contributions need to be acknowledged rather than treated in a way that suggests their response is somehow soft on crime and missing the mark in regard to what needs to be done to solve this serious problem.

I look forward not so much to the passage of this legislation today but to a time when we will not be talking about people in areas like Limerick who use threatening behaviour, who threaten to take the lives of innocent citizens to get their way and, by so doing, compromise the rights of all our citizens. I hope that in a short timeframe legislation of this type will not be needed and we will live in a more peaceful, prosperous and safe society. On those grounds I support this Bill, albeit reluctantly, and look forward to the Minister responding to the concerns people still have about the legislation.

Senator Alex White:Before I deal with the substance of the issue before us, I wish to deal briefly with two matters. On the confusion, to which the Minister referred, there may well be confusion in some quarters in terms of the debate about the Garda evidence and as to the issue that this is covered in the Act, but I do not believe there is any confusion in that respect in this House. As we do not have a great deal of time within the next few hours to deal with this legislation, we can leave that issue aside. I do not believe anybody is confused in this House as to what the Bill proposes in regard to Garda evidence. That is clear. We can debate whether it is right or wrong, but it is clear in the Act. We should leave the issue of confusion aside.

3 o’clock

The second matter relates to the debate on this legislation. We are here to participate in this debate and we want to do so for as long as it takes. I made the point on the Order of Business earlier that, unfortunately and regrettably, there did not seem to be much point in debating this legislation because the Government was clearly intent on not accepting any amendments, which would render this debate somewhat irrelevant. The Leader shook his head in response to my comment, which I took to be an indication that he disagreed with me. Senator Leyden then indicated to the House that if amendments were brought before the House that the matter could be dealt with during the course of the summer. The Minister has now put that issue at rest and has made it very clear, in no uncertain terms, that no amendments to this legislation will be accepted by the Government and that, to use his words, “we need this legislation now”. Let us be clear about this, there is no intention on the part of Government to permit this House to amend this legislation in any respect today or on any other day.

Notwithstanding the Government’s view as to whether we should be listened to in this House on this legislation, we still have to reflect on our role as legislators. We are paid to come here [1221]by the people to deal with legislation. As to what is our role, I accept that the Government has a very particular role, perhaps an enhanced one in the sense that it has the expertise and advice of the Garda available to it and it is dealing on a day to day basis, operationally and in policy terms, with the management of the Department of Justice, Equality and Law Reform. Therefore, it is in a position of expertise far greater than anything available to any of us. I accept that. That is how the system works.

Let us examine our role. I do not wish to oversimplify it but it appears to be the case that a Minister comes to the House to inform us of the changes that need to be made to the law because there is a problem that needs to be addressed and he outlines the changes he proposes we should make. It is our role to ask him to tell us why that is the case and to demonstrate it to us. We then consider whether that explanation is adequate and we either vote for or against the proposals brought by the Minister. I accept that is an oversimplification but it is not an unreasonable description of our role.

Am I correct in that are we not entitled to ask the Minister to do more than simply assert the need for certain legislation? The Minister must demonstrate the need for it to us. He must show us why it is necessary, not just simply by anecdote, the expression of his opinion or the communication to us indirectly of an opinion given to him by the Garda. He must give us some evidence on which we can take the rest of the argument in trust that what he says is necessary. I cannot, and do not, exclude the possibility — I say this genuinely — that these measures are necessary, but I am not prepared to agree to them simply by it being asserted to me without any evidence or convincing argument — in some cases without any argument at all — as to why they are necessary.

This is very serious legislation. We are dealing with the curtailment of rights and the liberty of the citizen, irrespective of what he or she is accused of, and in view of this we are under a bound duty to exercise the strictest possible scrutiny of any such proposal. That is all I am interested in doing. Senator Quinn, and to some extent Senator Boyle, have expressed the hope that the Minister will return with responses to some of the questions that have been raised. I do not know whether the Minister will do so when he replies to Second Stage. However, he has made it clear that he does not intend moving from his position. That puts us in a very odd position in terms of trying to debate the issue, or any expectation we might have that the Minister might address any of the difficulties we have.

There are two propositions that I hope we all share in this debate. In fairness, I accept that the Minister’s objective is to address the serious problem of gangland crime. I accept his bona fides in that respect. I agree with Senator Boyle and others that we should also accept the bona fides of others who have raised queries and doubts about the necessity of some of the measures that have been proposed. It is clear that there has been a shocking increase in the level and ferocity of gangland crime, especially in cities. There has been a huge increase in gun murders. What has preyed on many people who have debated and discussed the matter and who observe it in the newspapers is the utter contempt shown by gang members for even basic civility in society, to say nothing of people’s basic safety and their human rights, and the shocking contempt shown for human rights and human life by those people. I completely accept that it has to be addressed in the firmest possible way and I do not exclude any reasonable proposal brought forward by the Minister for Justice, Equality and Law Reform. That is the first proposition, that there is a major problem to be addressed. There is no use in any organisation, NGO, politician or anybody else trying to suggest that there is not.

We all, including the Minister, share the second proposition also. He appears to have considered introducing some of these measures at various stages in the past year or two but decided against that. The awful murder of Roy Collins brought these matters back onto the agenda and [1222]the Minister decided it was time to move. I do not think the Minister has to answer to us on this point. It is clear he too believes the criminal justice system should have integrity and that there must be a basic protection in it for the rights of the accused.

I have never believed in the rights of the accused versus the rights of the victim. That is not a zero sum game. I do not agree with people who say that if one is for the protection of the basic rights of the accused that, therefore, one is in some way seeking to reduce the rights of the victims of crime. That does not stand up to scrutiny. It is clear the Minister agrees there is a need to protect basic rights. He has suggested at certain stages that he could have introduced further restrictions but he determined not to do so because he did not consider that was appropriate or necessary.

The first proposition was that there is a big problem to address. The second proposition is that the integrity of the criminal justice system must be maintained and that the rights of the accused must be protected within the limits that we determine are correct. What has the Minister done in recent months? I find it difficult to accept the point from the Minister, which he made two or three times in his speech, that he did not do this lightly. I hope he did not bring forward the proposal lightly. I presume the discussion in the Department between the Minister, his advisers and the Attorney General took place over a period of months. I presume that is the case but I, rightly, do not know.

Why should the Oireachtas not also have an opportunity to address this matter seriously? Why is that indulgence not extended to the people who are supposed to be the legislators? Sadly, it is because the Legislature is not taken very seriously by the Government. The careful consideration of this issue, which I have no doubt went on between the Minister, his advisers and the Attorney General, is all done now in the eyes of the Minister and all that remains to be done is for the Dáil and the Seanad to rubber-stamp it.

That brings me back to my point that the Minister comes to the House and asserts the necessity for change, such as that the Garda advises it is necessary. The Minister refers to the Garda again and again. The advice of the Garda Síochána would probably be the first item on the agenda if one was seeking to be advised on any of these issues. I accept that, but it is not the only issue that needs to be addressed. The expertise and experience of the Garda is vital in any of these matters but it is not the only issue to be considered. We have Ministers, a Government and a Parliament and they make these decisions. I hope it is not to be suggested, as it was implied almost in the Minister’s speech from time to time, that if the Garda thought something was necessary, ipso facto, it was. I do not accept that. I do not say I accept the opposite either, that simply because the Garda want something it should not be allowed. However, it is not of itself sufficient justification and the measures must be scrutinised.

I hope the measure was scrutinised by the Minister. I believe it was to some extent from something he said in his speech but why can the Parliament not have at least some opportunity to engage in examination, scrutiny and questioning? Why are we being completely excluded from that? The debate in the other House was guillotined and we are being told by the Minister that it does not matter what amendments we wish to put forward, as they will not be accepted. This is in the context of where a piece of legislation solemnly states: “It is hereby declared that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to an offence under each of the following provisions”, which are listed. Let us just pause here. It is an extraordinary statement.

Senator Bacik and others referred to the various issues of concern in the legislation. I acknowledge that the Irish Council for Civil Liberties, the lawyers who wrote to The Irish Times and others are motivated by absolutely the best intentions in regard to these issues. [1223] However, it is a bit much for some commentators to bring forth the notion that we are playing the man and not the ball and to suggest that people are motivated by anything other than the wish to see a system in place that respects the rights both of the accused and of victims. We strayed somewhat into that area in this House some time ago before people thought better of it.

There is much in the legislation with which I agree, including the creation of the offence of directing a criminal organisation. As I recall, that proposal was brought forward by my party in the Dáil some time ago, only to be dismissed by the then Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, on the basis that such an offence was too amorphous. As Deputy Rabbitte observed in the other House, it is now included in the Bill. As I said, certain of the provisions in the Bill are welcome.

However, the most striking aspect of the Bill is the momentous statement we are being asked to endorse, namely, that the ordinary courts are “inadequate to secure the effective administration of justice and the preservation of public peace”. I am not persuaded of the veracity of that statement. No case has been made to this House — not even a bad case — that the ordinary courts are inadequate for purpose. It is important to clarify that this Bill is not about the intimidation of witnesses. There are two references to witnesses in the legislation, only one of which — the provision in section 16 allowing for an increase in the penalty in respect of the intimidation of witnesses — is substantive. People should stop conflating witnesses with jurors, as the Minister and others have done from time to time. That is not what the Bill is about.

The main objective of the Bill is to remove certain offences from the jurisdiction of the ordinary courts. I am not persuaded by the case that has been made in this regard. No convincing evidence has been brought before the House to demonstrate the necessity for this change. Only one example has been given in regard to the intimidation of jurors in a trial in Limerick. As I understand it, that trial was moved to Dublin and a conviction was secured. We must bear in mind that convictions are being secured every day of the week, including in many of these awful gangland cases. If a trial cannot successfully proceed in Limerick, it should take place in Dublin. There are many other measures that can be taken in terms of protecting the integrity of the jury system. A new criminal justice building is currently being completed on the quays. Even in terms of the physical environment of the courts and the arrangements that are made in regard to jurors, much can be done to ensure they are protected. There is an unfounded perception in regard to the prevalence of juror intimidation. Even the references to Garda support for these provisions refer to the concern that such intimidation might happen in the future. We have been shown no evidence that it is already happening.

Senator Jim Walsh:I welcome the Minister of State, Deputy Barry Andrews, to the House for this important debate. Much legislation relating to the criminal justice system has come through the House in recent years, most of which has been targeted at the serious criminals involved in the drugs trade. There was an element of turning a blind eye by society when such persons were murdering their gangland competitors in a cavalier way. In recent times, they have also targeted innocent people. It is evident that despite the incremental improvements we have seen in legislation, they have not arrested the problem. I followed the debate on these measures in the newspapers and in the other House. I agree that when we are making changes to legislation, we must be mindful of fundamental human rights. However, there is no more fundamental right than the right to life, it being the basic human right which underpins all others. If that right is not protected, other rights become irrelevant.

I would be more inclined to take note of the statements made by the Irish Human Rights Commission and others on this matter if they had included any acknowledgement of the human rights of the victims of these murderers and gangsters. It is seven years since we spoke in this [1224]House about the savage murder of Brian Fitzgerald. As I recall, Senator Cummins was Fine Gael spokesperson on justice at the time. Mr. Fitzgerald, a security guard, was trying to safeguard the clients of the premises in which he worked by not allowing people with drugs into the establishment. He was murdered in cold blood as a consequence of that. Richard Kelly was a 19 year old who stole a car from a member of one of the Limerick gangs. When he discovered the identity of the owner, he quickly returned it but was subsequently murdered by the gang.

We all recall the murder of Shane Geoghegan. We must ask ourselves about the human rights of his parents, colleagues and those with whom he played rugby. His human rights have never been flagged in lights. The murder which was the ultimate catalyst for this legislation was that of Roy Collins in Limerick. His father and the journalist, Paul Williams, spoke about the murder on the television some days ago. Both of those men are under Garda protection because they have been articulate in criticising the thugs involved in gangland crime and in promoting the interests of society. Another murder victim was Anthony Campbell, a young man shot in Dublin because he happened to be in the wrong place at the wrong time. The most recent murder was that of Wayne Doherty last week, shot down in cold blood in Dublin. We must acknowledge the human rights of his wife, Karen, and their two children. We have an obligation to address these issues.

I do not buy into the overemphasis that is placed on ensuring the human rights of criminals are ring-fenced and protected when they are in court. Many such criminals are able to exploit the system and evade justice. We must be realistic in all of this. The Minister is taking a measured approach in this legislation. Some of the negative commentary is predicated on a misinterpretation of its provisions. The Bill provides that organised crime offences shall be scheduled offences, which means they will be heard in the Special Criminal Court provided that the Director of Public Prosecutions directs that it should be so, presumably on the basis of the evidence with which he or she is presented. What is objectionable about that? The argument has been made that this removes the jury from the process and thus represents a departure from ancient traditions. We must meet the current onset of very serious, destructive and irresponsible organised crime in an effective way. If it cannot be eradicated, we must at least ensure everything is done to diminish it significantly. We are far too wedded to some of the current features of the justice system.

The Bill provides for a new offence of directing or controlling a criminal organisation, which carries a maximum sentence of life imprisonment. Heretofore, very few of the major leaders of drug gangs have been imprisoned. Of those few who have been sentenced, conviction was secured on foot of an offence other than that for which they are notorious. I understand one such person is currently imprisoned on a tax default charge. If we are realistic in the manner in which we target crime, we must tackle it on the basis of the offences that are being committed almost with impunity by these people. Existing legislation provides for a minimum sentence of ten years for those found guilty of dealing drugs. However, it is often the mules who are arrested rather than the ganglords themselves. The latter, some of whom are worth hundreds of millions of euro as a consequence of their illegal activity, seem to be able to operate with impunity. It is right that we are now creating this new offence, which is overdue. I applaud the Minister for introducing it.

In the context of our judicial system, we need to examine sentencing. Life imprisonment should mean exactly that, and if a sentence is for 15, 20 or 25 years then that is what it should be. There should not be remission just because somebody behaves themselves in prison. We have strong anecdotal evidence that many prisoners still carry on running their organised crime gangs while in prison, which is an untenable situation.

[1225]There is an amended offence concerning participation and involvement, which carries a penalty of 15 years’ imprisonment. There is also evidence based on the expert opinion of a member of An Garda Síochána. The emphasis there must be on the fact that it is an expert opinion.

There is an expectation that these new measures will be a panacea. While they will be a significant improvement, I do not believe they will amount to a panacea. We need to look at the next step, but I do not go with those who say we should consider internment. We should examine the capacity of our criminal justice system, however. I do not see why we should necessarily be wedded to the common law system, which is so beloved of barristers for a variety of reasons. The Napoleonic code, for example, would allow for these gangsters to be taken into custody, await trial while in custody and subsequently the courts would dispose of the cases before them, by prosecuting, convicting or releasing the accused.

If we fail with this legislation, I would strongly argue that we must examine the next step, including the advantages of the Napoleonic code where there is a presumption of guilt. If one asks gardaí or people living in the affected areas, they know precisely who are the crime gang lords. They also know about the money they are raking in through their involvement in illegal activities. We should be pragmatic in the way we approach this matter. Society wants results and I applaud the Minister for taking a courageous step in this direction.

Senator Maurice Cummins:I am on the record of this House as having called, on at least two occasions, for gangland criminals to be treated the same as terrorists. Jury intimidation, interference and threats, and the killing of fellow gangland figures — but especially innocent victims such as Roy Collins and Wayne Doherty — constitute an attack on the very fabric of this State. Whether we like it or not, criminal gangs thrive in this State at the moment. These gangs who terrorise entire communities, especially in Limerick and Dublin, pose a genuine threat to the State and they must be put out of business.

I fully support the new provisions in this Bill and especially the new powers to allow the non-jury Special Criminal Court to try suspected gang leaders and members. I see this as an essential step in removing jury intimidation from the courtroom. We must remember, as has been pointed out, that the Director of Public Prosecutions still retains the discretion to seek a jury trial.

While supporting the Bill and its provisions, I totally disagree with rushing this legislation through the House without adequate research, consultation or debate. I recall that when the Criminal Justice Bill was going through this House in 2006, the then Minister for Justice, Equality and Law Reform, Michael McDowell, listened, debated and exchanged opinions with several Members of the House for weeks. He accepted amendments from Senators, including several which I tabled myself. Whether or not one agreed with him on the Bill, one at least knew that it had been teased out properly and the democratic process was clearly seen to work.

If this Government was serious about allowing proper debate on this Bill and others, it would have held back both Houses of the Oireachtas for another week or two to ensure that this legislation was not rushed and was debated properly. Be that as it may, the Bill is now before us and we must deal with it to the best of our ability as legislators, despite the time limitations that are being imposed.

I read with interest the comments of a parish priest, Father Joe Coyne, at the recent funeral of Wayne Doherty. His words deserve to go on the record of this House. He said:

It is utterly scandalous, totally unacceptable and beyond any conventions of right or wrong that somebody would be shot brutally outside his parents’ house. How dare anybody think they have the right to decide who lives or who dies. How can anybody have the gall to carry [1226]weapons, or to drive people carrying weapons or to supply weapons? People or society could never give in to that type of violence.

Fr. Coyne said that such matters were now under discussion in the Oireachtas, and asked why people should not be accountable for their actions if they are known to be involved in criminal activities and particularly organised violence. With reference to this Bill, he said, “It is complicated. Nobody wants a police state, yet there is a decision, and wisdom is needed among our legislators”. Fr. Coyne’s words covered a lot of ground and I hope that we in our wisdom will make the right decisions today. It is unfortunate, however, that no matter how salient or relevant our amendments are, we are only going through the motions because the Dáil will not be recalled to deal with any of them. This is a negation of democracy and an insult to the Members of this House.

The rights of citizens are protected through the rule of law. It should mean speedy, effective and affordable justice. It should mean guarding communities against thugs and gangsters. We need to bring back respect for the rule of law and law enforcers. Members of the legal profession must also accept it is their duty to ensure that citizens have the right to prompt and affordable access to the courts. Let us face it, this is not currently the case.

The growth of gang crime, intimidation and fear in communities have grown out of all proportion in the last decade. The Criminal Assets Bureau has been a valuable tool in assisting the State in bringing many criminals to justice, but can we say that we have less crime now than when the bureau was formed following the killing of Veronica Guerin? We seem to have many more drug-related gang lords and their lieutenants on the streets of our towns and cities. We must respond with adequate — and some may say, draconian — laws to address modern needs and the ever-changing methods employed by these ruthless people.

These new laws will, I hope, target those who see themselves as being above the law and who show contempt for all decent people and society at large. They prey on the vulnerable, destroying communities and threatening the very fabric of society. They must be brought to justice and taken out of society for a long time to allow good people in communities to live in peace, without fear and intimidation, and to prosper as many other communities have done in the last decade.

I hope this Bill will be a start in stemming the tide of crime which is swamping our country at present. Making laws is one thing, but it is a futile exercise if gardaí do not have adequate resources to enforce them. This is a test for the Government. Will this legislation be enacted just to satisfy a public which is weary and angry at the level of crime? Will it gather dust or will we see the necessary funds being allocated to ensure its provisions empower those charged with enforcing the law to carry out the laws as intended? The jury is out on that, but I will not shirk in my responsibility in supporting laws that will assist in bringing gangland figures and murderers to justice. It is over to the Government to back up this legislation with the necessary resources.

I wish to refer to an article in last Saturday’s Irish Independent by Jim Cusack, a journalist who is an excellent commentator on criminal matters. He reported how a retired senior detective, who faced down some of the worst criminals in the State, has condemned the Government for not properly resourcing the witness protection programme to allow gang members to turn State’s evidence against their associates. He also referred to the ludicrous requirement for senior gardaí to retire at 60, which resulted in the loss of people with invaluable experience and knowledge. I hope better resources will be provided to enable the provisions of the Bill to be enforced. This should be financed and run in a better way than the witness protection programme.

[1227]There are ten other Members offering to speak on this Bill.

Acting Chairman:I ask the Senator to wrap up as he has exceeded his time.

Senator Maurice Cummins:There are ten Members who wish to speak on Second Stage of the Bill, but it is being guillotined in another 15 minutes. It is a disgrace——

Senator Ivana Bacik:Hear, hear.

Senator Maurice Cummins:——that Members of the Oireachtas wishing to comment on the Bill are being denied the opportunity of doing so. It is a negation of democracy and any government engaging in such behaviour should be ashamed of its actions.

Acting Chairman:I ask the Senator to finish as he is eating into another Senator’s time.

Senator Maurice Cummins:The Government is trying to push this legislation through not only on Second Stage but also on Committee and Report Stages. It is an absolute disgrace.

Senator Ivana Bacik:On a point of order, there are also people on the Independent benches who wish to speak.

Senator Jim Walsh:That is not a point of order.

Acting Chairman:Absolutely. I call Senator Eoghan Harris, who has four minutes, which is unfortunate as he has waited all day, but the Minister must be called to reply at 3.35 p.m.

Senator Eoghan Harris:I will not waste time in hand-wringing about guillotining and the rest of it. The fact that some of our contributions are terse and to the point may be valuable. This Bill is necessary but not sufficient. We will be back here again, but there is nothing particularly reprehensible about that; law is a process, not a product. We must respond to events as they occur.

As a non-lawyer, I will turn to the historical hinterland of the Bill. All western European thought about crime and punishment goes back to Plato, who thought man was born an angel, and Aristotle, who thought man was born fundamentally flawed. Aristotle said we must protect society from those members who behave like beasts. He said that without law men are beasts and that society would have to be hard enough to deal with enemies foreign and domestic. That is what the State was set up to do, to protect its citizens from its foreign and domestic enemies.

These are not essential matters in the sense that we are dealing with essences; we are always dealing with context. Thus, when the Minister says the Roy Collins murder was a tipping point, he is right because it is the context in which it took place that matters, not the essence. If a man tells one he has killed somebody, one would want to know whether he killed the fellow as part of the UN peacekeeping force in Chad or at his front door in the course of a robbery. The essential killing is not the point, it is the context that is important. The context is that the symbiosis between degraded sections of the IRA campaign and the drug culture has created a new form of gang, one whose criminal members are capable of turning up on the streets of a major city during a demonstration and photographing citizens. There is no other city in the UK or on the Continent in which this could be done. This is new and it is a threat to the safety of the State. It needs the steely face of the State to deal with it.

The context means we can introduce harsh and punitive measures and then pull back from them when we no longer need them. We did this in 1922, when it brought the Civil War to a quicker end. We did it in 1939 and it saved our neutrality from being traduced. We also did it in 1956. Each time the State went back to the rule of law and did not maintain these draconian [1228]measures. This is a special time and a special context, and special measures are required. The Minister has at least walked the walk rather than talking the talk. I wish, however, he would indicate whether he is prepared to go further, if necessary. For example, the entire legislation arises from the emergency anti-terrorist measures in our history. It is the son of the Offences against the State Act 1939, the Offences against the State (Amendment) Act 1998, the Criminal Law Act 1997 and the Criminal Justice Act 2006, and these are all sons of the Emergency Powers Act 1939 and of the political history of the State against terrorism.

Senator Cummins and others are right in saying we should treat gangland criminals as terrorists. As this Bill is the son of the aforementioned emergency legislation, I am sorry the Minister did not go the full distance and allow a detective inspector or chief superintendent to give evidence of gang membership. There are problems in this regard and that is why I have recommended again and again — I agree fully with Senator Jim Walsh in this regard — that we should move slowly between the British and the continental system. We must begin to think of a system of investigating magistrates who would head up crime task forces. These would conduct the preliminary hearings and actively interrogate witnesses, and then bring the case to the Special Criminal Court. Being lawyers, the investigating magistrates would carry much conviction with their judicial peers.

As the old saying goes, there is a lot done but more to do. Everything that has been brought in is necessary, although, as I said, I do not believe it is sufficient because the criminals will change. I hope the Minister is not prepared to stop here and that, having walked the walk so far, he will go the extra mile and treat this as a special period in Irish history similar to the beginning of the Second World War, the 1956 campaign and the emergency in 1922. This is a special emergency in modern Irish life. The combination of drugs gangs with a pathologically degraded section of the old IRA campaign, plus a recession, creates a specific set of circumstances which require the most severe measures. I hope the Minister will not flinch.

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern):I thank Senators for their comments. Senator Regan said I referred to this legislation as a panacea, which I did not. At no stage did I say that.

Senator Maurice Cummins:We have other speakers.

Senator Frances Fitzgerald:On a point of order, I assume the Acting Chairman is calling the Minister because of what was ordered this morning rather than because there are no more speakers.

Acting Chairman:Yes.

Senator Frances Fitzgerald:We have more speakers.

Acting Chairman:It was agreed by the House this morning that the Minister would reply at 3.35 p.m.

Senator Maurice Cummins:It was 3.45 p.m.

Acting Chairman:It was 3.35 p.m.

Senator Maurice Cummins:The time mentioned on the Order of Business was 3.45 p.m.

Acting Chairman:My instruction was to ask the Minister to reply at 3.35 p.m.

[1229]Senator Frances Fitzgerald:Fine. I wanted to make the point that there are a number of other speakers who would like to contribute on this Bill, so it is effectively being guillotined.

Acting Chairman:We realise that, Senator. Those speakers are from both sides of the House.

Senator Maurice Cummins:What is happening in the House is a damned disgrace.

Acting Chairman:I apologise for the interruption and ask the Minister to continue.

Deputy Dermot Ahern:I am not naive enough to think this Bill will cure all the ills of our society or get rid of all the gangland crime in the country. Of course it will not. Senators Harris and Walsh mentioned the possibility of going further. I would not exclude this possibility, nor should the Oireachtas. I reiterate that the Bill is not what some people have made it out to be. It is not a seismic change in the criminal legal system, it is a relatively measured response, as the Garda Commissioner said, and a proportionate one.

After the murder of Shane Geoghegan we were called upon by members of Fine Gael, in particular, to take measures in this regard. The former Minister for Justice, Deputy Noonan, and others wanted internment. They wanted people lifted off the street. Others, including Deputy Noonan, raised the possibility of allowing opinion evidence — real opinion evidence, not expert evidence as provided for in the Bill — whereby a chief superintendent or senior member of the Garda would say a particular person was a member of a criminal gang. We have not gone that far. What we have done, however, is to send a strong signal. The reaction of the Oireachtas and the vote in the Upper House will send a strong signal to the wider community and particularly the criminals that if they direct or participate in an illegal criminal organisation they will receive severe penalties if found guilty — up to life imprisonment for directing activities and 15 years for participation — and that they will not be in a position to intimidate jurors. In this legislation these two offences are being made scheduled offences, which means they go to the Special Criminal Court unless the Director of Public Prosecutions otherwise directs.

Senator Boyle mentioned the 12-month review, which was included to allow us to see how the legislation operates. It may well be that after a year no case has been referred to the Special Criminal Court, which I would welcome, because the DPP has made a judgment that the ordinary courts are sufficient. However, that is the decision of the DPP alone.

I do not accept what Senator Alex White stated in respect of a lack of evidence. The Government and I made our decision based on the hard evidence presented to us by the Garda Commissioner and his senior management.

Senator Alex White:What about us?

Deputy Dermot Ahern:We did not make that decision based on comments from judges, State solicitors or Paul Williams, who is well-respected and who holds strong views on this issue.

Senator Alex White:I accept that.

Deputy Dermot Ahern:We based it on the hard evidence given to us by the Garda Commissioner and a large number of the testimonies provided by individuals such as the Minister for Defence, Deputy O’Dea.

Senator Alex White:The Minister has not provided that evidence to us.

[1230]Deputy Dermot Ahern:People came to me privately and indicated the difficult situation that obtained in Limerick and elsewhere in respect of the intimidation of witnesses. I want to nail that matter on the head.

Senator Alex White:I am afraid the Minister has not done so.

Deputy Dermot Ahern:It is ironic that I should be accused of rushing the legislation through. As stated in this House following the murder of Roy Collins, I was pressed to introduce various measures in the aftermath of the murder of Shane Geoghegan. I did not believe it was necessary to do so but, as Senator Harris stated, the murder of Roy Collins was a clear indication that there are people who are willing to take out the family members of those who are willing to co-operate with the criminal justice system. Roy Collins’s murder was an attack on the State, on its criminal justice system and on the concept of law and order. It is clear that those to whom I refer were telling people who were willing to participate in criminal trials against them, that they were prepared to take revenge against them.

I cannot put it any better than the leader of Senator Alex White’s party who, in November 2008 — following the murder of Shane Geoghegan and prior to that of Roy Collins — said, “We do not want to hear the reasons certain things cannot be done.” A couple of days later, Deputy Rabbitte stated, “The public mood is to assent to measures in the present crisis that people would not otherwise tolerate.”

Senator Alex White:Is the Minister stating that we should assent to any measures?

Deputy Dermot Ahern:However, we are now being criticised for reacting to the situation.

In addition to the hard evidence provided by the Garda, we also received evidence from court officials, particularly those who work in the Limerick area——

Senator Alex White:Will the Minister give way for a question?

Deputy Dermot Ahern:I have very little time in which to reply.

Senator Alex White:Why can we not be shown the evidence to which he refers?

An Cathaoirleach:The Minister, without interruption.

Deputy Dermot Ahern:The evidence provided by the officials to whom I refer particularly related to the difficulty of encouraging jurors to participate in trials. The top official in Limerick indicated that there is “a tacit understanding that there is no point in holding gangland murder trials in Limerick”. That view was clearly underlined a number of years ago when, in the context of the murder of Kieran Keane——

Deputy Dermot Ahern:——there was an inability to encourage people to act as jurors.

Senator Alex White:The Minister should quote Mr. Murray.

Deputy Dermot Ahern:At that time, and in the space of two months, jury attendances had declined from one third to less than one fifth. In one instance where 350 people were called, 195 medical certificates were received. Every excuse in the book was offered in order that people might not be obliged to participate in these trials.

Senator Alex White:That is irrelevant.

[1231]Deputy Dermot Ahern:It was stated that there was no hard evidence. Mr. Michael Murray stated that he is aware of one case in respect of which he was so concerned with regard to the level of intimidation that he made a report to the Garda authorities. Mr. Murray also stated that he asked the Garda to investigate a case where a person was acquitted in circumstances where it was clear to him that the jury was afraid. He further stated that there has been a distinct reluctance on the part of people who are called to participate in juries and that he was aware of a case where it was clear that an adverse decision, based on the intimidation of jurors, had been reached.

Senator Alex White:The Minister should quote the entire statement made by Mr. Murray. I have a copy of it here.

Deputy Dermot Ahern:Neither I nor the Government can guarantee the constitutionality of the Bill. We bring forward legislation on the advice of the Attorney General. The latter is absolutely satisfied that the Bill will pass constitutional muster. Immediately following the murder of Roy Collins on 9 April, I clearly indicated that we intended to bring forward this legislation. The Taoiseach and I held a joint press conference on 13 May at which we issued a press release containing all of the details relating to the Bill. The only matter which is not contemplated in the Bill, but which was referred to in that press release, is that relating to membership of a criminal organisation. We were of the view that such membership would be impossible to prove, particularly in light of the surreptitious nature of these criminal organisations.

I reject the premise that we did not have enough time to debate the Bill.

Senator Maurice Cummins:We have not had enough time.

Deputy Dermot Ahern:There will be many hours in which to debate Committee Stage and Report Stage.

Senator Maurice Cummins:What about the time allocated in respect of the Second Stage debate?

Deputy Dermot Ahern:The Dáil devoted ten and a half hours to the debate on the legislation. We will suffer paralysis by analysis if we do not proceed. This is a time for action.

Senator Maurice Cummins:Ten and a half hours.

(Interruptions).

An Cathaoirleach:There should be no interruptions.

Senator Alex White:Whatever problems we have, that is not one of them.

Deputy Dermot Ahern:People are suggesting that we should delay the passage of the legislation until September.

Senator Ivana Bacik:The Minister should have introduced it sooner.

Senator Maurice Cummins:No one has made that suggestion.

(Interruptions).

Deputy Dermot Ahern:We want this legislation to be passed in order that people might be charged——

[1232]Senator Frances Fitzgerald:Well then the Minister should have introduced it much sooner.

Senator Maurice Cummins:We are in agreement with the Minister in respect of the need for legislation.

Deputy Dermot Ahern:——on the day following its enactment rather than next September. Criminal law is not retrospective.

Senator Maurice Cummins:We know that and we are not suggesting that the Bill should be delayed.

Senator Frances Fitzgerald:The Minister has excluded us from——

Deputy Dermot Ahern:In such circumstances, there is no point in waiting until October to pass the legislation and then trying to convict people of trying to direct criminal organisations.

Senator Maurice Cummins:On a point of order, no one on this side of the House is suggesting that the legislation should be held over until September. We are referring to the procedures being employed in this House.

An Cathaoirleach:That is not a point of order. We must proceed with the business of the House, as ordered.

Senator Maurice Cummins:The legislation should have been debated today and tomorrow——

Senator Jim Walsh:That is a point of information, not a point of order. In addition, it is being belaboured.

Senator Geraldine Feeney:It should not be allowed. That is not a point of order.

Senator Maurice Cummins:——and then passed into law.

An Cathaoirleach:We must proceed. The Minister’s time is almost exhausted.

Deputy Dermot Ahern:The phrase “playing the man, not the ball” was used. There has been a major element of that in this House in recent times, not only in respect of this legislation but also in respect of that relating to blasphemy.

Senator Eugene Regan:The Minister should not be so sensitive. He is being extremely touchy.

Senator Frances Fitzgerald:Which is not like him.

Deputy Dermot Ahern:I have no doubt that this Bill and that which relates to surveillance will prove significant. As stated previously, the legislation before the House will reduce the possibility of the necessity to have civilian witnesses in gangland trials. This, in turn, will reduce the possibility of criminals intervening and intimidating such witnesses.

Senator Ivana Bacik:The Bill does nothing for witnesses.

Deputy Dermot Ahern:This is good legislation which will pass constitutional muster. Despite the histrionics of those who state that we do not have enough time——

Senator Frances Fitzgerald:Which happens to be true.

[1233]Deputy Dermot Ahern:——I am of the view that the vast majority of Members in this and the Lower House agree with the legislation. I have no doubt that a similar proportion of the people are in favour of the legislation. I cannot put it better than Steve Collins, the father of Roy, who stated that the only people who have to fear this legislation are the criminals.